H. S. Krishnaiah vs H.L. Somashekhar
2021 Latest Caselaw 3435 Kant

                                         W.P. NO.8487 OF 2017
                                     1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF OCTOBER, 2021

                           BEFORE

        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

        WRIT PETITION NO.8487 OF 2017 (GM-CPC)

BETWEEN:

H.S. KRISHNAIAH
S/O L.C. SHETTAIAH
AGED ABOUT 67 YEARS
RESIDING AT NO 19
12TH CROSS, CUBBONPET
BANGALORE - 560002
                                               ...PETITIONER
(BY SRI. G. KRISHNA MURTHY, ADVOCATE FOR
    SMT. G.K. BHAVANA, ADVOCATE)

AND:

1.    H.L. SOMASHEKHAR
      S/O H.S. LAKSHMAIAH
      AGED ABOUT 52 YEARS
      RESIDING AT NO 16/106
      10TH MAIN ROAD, 11TH B CROSS
      MALLESHWARAM, BENGALURU

2.    SRI. H.L. TUKARAM
      S/O SRI.H.S. LAKSHMAIAH
      AGED ABOUT 50 YEARS
      RESIDING AT NO 1079
      HIMAGIRI, CHIKKADEVARAYA ROAD
      WEAVERS COLONY, PIPE LINE
      SRINAGAR, BENGALURU - 560050
3.    SRI. H.L. LAKSHMIKANTH
      S/O SRI.H.S. LAKSHMAIAH
      AGED ABOUT 50 YEARS
      RESIDENT OF HALEPLAYA
      TIPTUR - 572202
                                        W.P. NO.8487 OF 2017
                                  2



4.   SRI. H.L. UMESH
     S/O SRI.H.S. LAKSHMAIAH
     AGED ABOUT 42 YEARS
     RESIDENT OF HALEPLAYA
     TIPTUR - 572202

5.   SRI. H.S. LAKSHMAIAH
     DEAD BY HIS LRS ARE RESPONDENTS
     NO.1, 2, 3, 4 8 AND 9
     ALREADY ON RECORD

6.   SRI. H.S. LAKSHMINARAYNA
     S/O L.C. SHETTAIAH
     AGED ABOUT 61 YEARS
     RESIDING AT ANNAPURNA
     HALEPALYA POST
     TIPTUR TALUK - 572202

7.   SRI. H.S. RAMACHANDRA
     S/O L.C. SHETTAIAH
     AGED ABOUT 56 YEARS
     RESIDENT OF HALEPALYA POST
     TIPTUR TALUK - 572202

8.   SRI. H.L. ASWATHNARAYANA
     S/O SRI. H.S. LAKSHMAIAH
     AGED ABOUT 54 YEARS
     RESIDENT OF HALKURKE ROAD
     ANNAPURNA HALEPALYA POST
     TIPTUR - 572202

9.   SRI. H.L. LOKESH
     S/O H.S. LAKSHMAIAH
     AGED ABOUT 46 YEARS
     R/AT CHOWDESHWARIGUDI BEEDHI
     HALEPALYA POST
     TIPTUR - 572202
                                            ... RESPONDENTS
(BY SRI. SHANMUKHAPPA, ADVOCATE FOR R1, R2 & R4;
   NOTICED SERVED TO R3, R6, R7, R8 AND R9;
   R1 TO R4, R8 & R9 ARE TREATED AS LRS OF DECEASED R5)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 9.2.2017 PASSED BY THE VII ADDL. CITY CIVIL JUDGE,
                                             W.P. NO.8487 OF 2017
                                   3



BANGALORE CITY IN O.S.NO.8358/2005 ALLOWING THE I.A.NO.5
FILED BY THE PLAINTIFF UNDER ORDER VI RULE 17 OF THE CIVIL
PROCEDURE CODE SEEKING FOR AMENDMENT OF PLAINT BY
ADDING CERTAIN PROPERTIES AS JOINT FAMILY PROPERTIES
ANNEXURE-A.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP AND HAVING BEEN RESERVED FOR ORDERS
ON 15.09.2021, THIS DAY, THE COURT PRONOUNCE THE
FOLLOWING:

                          ORDER

1. The petitioner is before this Court seeking for the

following reliefs;

i. Set aside the order dated 9.2.2017 passed by the VII Addl. City Civil Judge, Bangalore City, in O.S.No.8358/2005 allowing the I.A.No.5 filed by the Plaintiff under Order VI rule 17 of the Civil Procedure Code seeking for amendment of Plaint by adding the certain properties as joint family properties Annexure 'A'.

ii. Pass such other and further orders as this Hon'ble Court deems fit in the circumstances, in the interest of justice.

2. The suit in O.S.No.8358/2005 was filed seeking for

the following reliefs

a. By DECREE declaring that the Plaintiffs 1 to 5 are entitled to partition and separate possession of their legitimate rights of 1/4th share in the Schedule Properties.

b. By Decree after holding that the Plaintiffs are entitled to 1/4th share together in the Schedule Properties put the Plaintiffs into the vacant possession of the Schedule Properties by metes and bounds.

W.P. NO.8487 OF 2017

c. By Decree for the manse profits after holding the enquiry under Order XX rule 12 of the Code of Civil Procedure.

d. For the cost and other relief or reliefs or order or orders as deem fit to grant in the circumstances of the case, in the interest of justice and equity.

3. I.A.No.5 under Order VI Rule 17 read with Section

151 of CPC for amendment of the Plaint was filed to

include 13 properties in the plaint schedule. The

said application came to be allowed by the trial

Court vide its order dated 09.02.2017 which has

been impugned in the present proceedings.

4. The trial Court while allowing the said application

came to a conclusion that

4.1. The Court should be liberal in allowing the

amendment to meet the ends of justice to

decide the controversy in question and to

avoid multiplicity of proceedings and driving

the parties to the subsequent litigations.

4.2. Whether the properties are the joint family

properties or not is a matter of evidence and W.P. NO.8487 OF 2017

as such, merits could not be decided at the

time of considering and/or allowing the

application for amendment since the Plaintiff

has contended that the properties are the

joint family properties, the same would have

to be taken on face value, the suit being one

for partition, all the joint family properties are

required to be added to the Plaint since a suit

for partial partition is not maintainable.

4.3. The amendment if allowed, no hardship or

injury would be caused to the Defendants.

The proposed amendment being only to

include certain properties neither changes the

cause of action nor does it alter the nature of

the suit. If the properties are not included in

the Plaint, another suit for partition can not be

filed by the Plaintiffs.

4.4. The amendment being necessary for

determining the real question in controversy W.P. NO.8487 OF 2017

between the parties, the application came to

be allowed. The trial Court imposed a cost of

Rs.3,000/- on the ground that the suit having

been filed in the year 2005 and the application

having been filed in the year 2010 was not

prosecuted by the Plaintiffs until the year

2017. Therefore, there is a delay in

prosecuting the matter.

5. It is aggrieved by the same that the petitioner, who

is the 1st Defendant in the suit, is before this Court.

6. The parties are described by their rank before the

trial Court.

7. Sri.G.Krishna Murthy, learned Senior Counsel

appearing for the petitioner submitted that:

7.1. The Plaintiffs have filed O.S.No.8358/2005

seeking partition and separate possession of

the alleged 1/4th share in the property.

W.P. NO.8487 OF 2017

7.2. It is the contention of the Plaintiffs themselves

that Plaintiff No.5 and the Defendant Nos.1 to

3 are the brothers and are governed by the

Hindu Mithakshara School of inheritance.

7.3. Plaintiff Nos.1 to 4 and Defendant Nos.4 and 5

are the sons of Plaintiff No.5. It is stated in

the Plaint itself that Plaintiff No.5 separated

from the joint family on 01.08.1965 by way of

a registered partition deed. Even the other

brothers of Plaintiff No.5 i.e., Defendants

Nos.1 to 3 have also separated from the joint

family by executing Release Deed dated

19.09.1973.

7.4. The Plaintiffs have themselves contended that

the Defendant Nos.1 to 3 in collusion with

their children and Defendant No.4 forcibly

prevailed upon Plaintiff No.5 under a threat to

their life to execute a registered Release Deed

dated 14.06.2002 and on the very same day, W.P. NO.8487 OF 2017

a Partition Deed also came to be executed and

signed by the Plaintiffs and registered before

the jurisdictional Sub-Registrar.

7.5. The Plaintiffs have not challenged either the

Release Deed or the Partition Deed dated

11.06.2002. In the absence of the said

challenge to the Partition Deed, the question

of the present suit being maintainable would

not arise. In a non-maintainable suit, the

question of filing an amendment application

would also not arise.

7.6. The contention of the Plaintiffs is that though

Plaintiff No.5 came out of the joint family, in

view of the business relationship, they have

continued with the joint family businesses

treating the property as joint family property

and therefore, now they have sought for

partition. There are no pleadings made in the

Plaint as regards reunion or otherwise. In the W.P. NO.8487 OF 2017

absence of such pleading of reunion, once

there was a partition deed executed in the

year 2002, the question of filing a partition

suit in the year 2005 would not arise.

7.7. The Plaintiff No.5 having left the family in the

year 1965 pursuant to a Partition Deed,

Defendant Nos.1 to 3 having separated under

a Release Deed dated 19.09.1973, the same

having been confirmed by a Partition Deed in

the year 2002, the question of introducing

properties by way of an amendment which has

been purchased by the Defendants

subsequent to the aforesaid events would not

arise.

7.8. Item No. 47 property sought to be introduced

were purchased in the year 1989, item No.48

properties sought to be introduced was

purchased in the year 1987, item No.49

properties sought to be introduced was W.P. NO.8487 OF 2017

purchased on 30.08.1985, item No.50

properties sought to be introduced was

purchased on 27.06.1997, item No.51

properties sought to be introduced was

purchased in the year 1980, item No.52

properties sought to be introduced was

purchased in the year 1996, item No.53

properties sought to be introduced was

purchased in the year 1996, item No.54

properties sought to be introduced was

purchased in the year 1997, item No.55

properties sought to be introduced was

purchased in the year 1973, item No.56

properties sought to be introduced was

purchased in the year 1973, item No.57

properties sought to be introduced was

purchased in the year 1965 and item Nos.58

and 59 as stated to be standing in the name

of H.S.Lakshminarayan i.e., Defendant No.6 in

the suit.

W.P. NO.8487 OF 2017

7.9. Learned senior counsel submits that these

properties having been purchased subsequent

to the aforesaid documents, they cannot be

brought on record in the present suit since

even as per the averment made by the

Plaintiffs there being a separation, properties

bought subsequent to the separation, cannot

be made part of the suit schedule.

7.10. Submission is that once there is a partition,

properties purchased subsequent to the

partition, cannot be included in a Partition Suit

filed subsequently. These facts would have to

be looked into when this Court is considering

an application under Order VI Rule 17 of CPC

and if this Court were to come to a conclusion

that the said amendment is not permissible or

contrary to law, the amendment application is

required to be rejected.

W.P. NO.8487 OF 2017

7.11. Instead of looking into all these aspects, the

trial Court has allowed the said application.

There is no application of mind on the part of

the trial Court and as such, he submits that

the impugned order is liable to be set aside

and I.A.No.5 under Order VI Rule 17 of CPC is

required to be dismissed.

8. Per contra, Sri.Shanmukhappa, learned counsel for

respondent Nos.1, 2 and 4 would submit that:

8.1. there are disputes between the parties as

regards whether there was a partition in the

year 1965 or a Release Deed in the year 1973

and even the alleged Partition Deed of the

year 2002. Therefore, when these documents

are in dispute, it cannot be said that the

properties brought by the Defendants are out

of their own funds.

8.2. That there is a specific allegation and/or

averment that the Plaintiffs and the W.P. NO.8487 OF 2017

Defendants continued to operate their

business together and it is from and out of the

income derived therefrom that the properties

now sought to be incorporated and/or

included in the plaint schedule were bought.

This is a matter which requires trial and

merely on the contentions raised by the

Defendants, the application could not be

rejected.

8.3. The trial Court considering that the application

and/or the amendment is required for the

purpose of effectively deciding the real

controversy between the parties has allowed

the said application.

8.4. If at all the Defendants have any defence to

the said documents and/or if the Defendants

were able to prove that those properties had

been purchased by the Defendants out of their W.P. NO.8487 OF 2017

own monies, then the same would be

considered by the trial Court after the trial.

8.5. It is on the basis of the above, he submits

that the order passed by the trial Court is

proper and correct and does not require to be

interfered with.

9. Heard Sri.G.Krishna Murthy, learned Senior counsel

for the petitioner and Sri.Shanmukhappa, learned

counsel for respondent Nos.1, 2 and 4 and perused

the records.

10. The points that would arise for determinations by

this Court are:

1. Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?

2. Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the W.P. NO.8487 OF 2017

Plaint as regards reunion between the family members ?

3. Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds ?

4. Whether merely because Plaintiff contentions that the properties are joint family properties are they required to be included in the Plaint by way of an amendment?

5. What Order?

11. Answer to Point No.1: Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?

11.1. This is a peculiar case in that Plaintiff filed a

suit in O.S. No.8358/2005 seeking for

partition and separate possession. In para 4

of the said Plaint it is stated as under :

"4. One Sri. L.C. Shettaiah was the father of fifth Plaintiff and the Defendants No.1 to 3. The Fifth Plaintiff was separated from the joint family set up on 1.8.1965 by registered partition deed registered as Document No.1510/65-66, Book No.I, Volume No.1082 at Pages 215 to 2016 registered in the office of the Sub-Regsitrar, W.P. NO.8487 OF 2017

Tiptur, leaving all immovable properties to the hands of father of the fifth Plaintiff herein that is L.C. Shettaiah, by taking only one property which was morefully described in the Schedule of the said Document. The said Document was registered in the style of single Partition Deed".

11.2. Paragraph 5 of the Plaint reads as under:

"5. Thereafter the other sons of L.C. Shettaiah, that is the Defendant Nos. 1 to 3 were also separated from the joint family set up, as such the second Defendant had released from the joint family set up on 19.9.1973 as per the registered release deed No.1217/73-74, Volume No.1316, Book No.1 at pages 180 181 registered in the office of the Sub-Registrar, Tiptur releasing entire properties in favour of L.C. Shettaiah. Likewise H.S. Krishnaiah the Defendant No.1 also released as per document No.1216/73-74, volume 1315 of Book No.1, at pages 240 to 241 registered in the office of the Sub-Registrar, Tiptur".

11.3. Thus, on a reading of Plaint, it is clear that

Plaintiff No.5 is said to have separated from

the joint family on 1.08.1965. It is also clear

that Defendants No.1 to 3 also separated from

the joint family by executing necessary

release deed on 19.9.1973.

11.4. Plaintiff ceased to be a member of the joint

family with effect from 1.8.1965 and the

remaining joint family came to an end on W.P. NO.8487 OF 2017

19.9.1973 when Defendant nos. 1 to 3

separated from the property.

11.5. The allegation of the Plaintiff at para 8 is that

the 5th Plaintiff after being released from the

joint family had acquired several properties.

At para 9 of the Plaint, it is stated that

Defendants No.1 to 3 in active collusion with

their respective children and in active collusion

with Defendant No. 4 exercising undue

influence had obtained certain signature on

papers without allowing 5th Plaintiff to read

and understand or making 5th Plaintiff to

understand entire papers which were stated to

be a release deed of the properties which

were situated in Cubbonpet, Bangalore.

11.6. It is contended that the various anomalies in

the execution of the said Document inasmuch

as the documents are stated to be executed in

Tiptur and presented for registration in W.P. NO.8487 OF 2017

Bangalore, the timeframe prescribed therein

would not match the actual time frame to

travel from Tiptur to Bangalore. It is

therefore alleged that the said Document has

been created by the Defendants and even

otherwise same is not binding on the 5th

Plaintiff for the reason that the Defendant and

Plaintiffs did not constitute the joint family

and they are separated by registered

documents through their father wayback in

the year 1965 and 1973. Thus the question of

executing a partition deed in the year 2002

would not arise.

11.7. Paragraph 11 of the Plaint is reproduced here

under for easy reference.

"11. Even otherwise it is not binding on the fifth Plaintiff or on the other Plaintiffs for the reason best known to the Defendant Nos.1 to 3 that the Defendants and the Plaintiffs was not constituted a joint family setup as they were separated by a registered documents through their father L.C. Settaiah in the way back 1965 and 1973. Thus the question f partition deed among the family does not arise".

W.P. NO.8487 OF 2017

11.8. At paragraph 12 it is contended that some of

the properties subject matter of the partition

deed dated 14.6.2002 had been acquired by

the 5th Plaintiff subsequent to a separation

from his father but however, none of the

were included in the said partition deed.

11.9. It is categorically contended that the

properties subject matter of the said partition

deed are the self-acquired properties in the

hands of the 5th Plaintiff, except the 5th

Plaintiff even his sons were not entitled to

partition and separate possession of the self

acquired properties of the 5th Plaintiff and

therefore it is opposed to the provisions of the

Hindu Succession Act.

11.10. In paragraph 13, the grievance of the

W.P. NO.8487 OF 2017

were fair, they should have included property

situated in Bangalore purchased by them.

11.11. On coming to know of the effect of the said

Document, when fraud is perpetuated, the 5th

Plaintiff approached Defendant Nos.1 to 3 to

effect cancellation of the deed, which they

refused to do so. Hence, Plaintiff had

approached the trial Court, in the aforesaid

suit seeking for partition of the properties by

contenting that the 5th Plaintiff is continuing to

be in joint possession with Defendant Nos.1 to

3 of the properties described in the suit

schedule, the prayer sought for in the Plaint

have been reproduced herein above.

11.12. Conspicuously, there is no challenge made to

the partition deed of the year 2002 even

though all the allegations in the Plaint are

made in relation thereto. There is only a

declaration sought for that the Plaintiffs 1 to 5 W.P. NO.8487 OF 2017

are entitled to 1/4th share in the scheduled

properties and for separate possession thereof

as also for enquire in main profits.

11.13. The reading of the entire Plaint would indicate

that even according to the Plaintiffs, the 5th

Plaintiff has separated himself from the joint

family in the year 1965, thereafter he has

acquired various properties which is claimed

by the Plaintiffs to be the self acquired

property of the 5th Plaintiff. There is a further

allegation made that in the partition deed in

the year 2002, the properties which were

subsequent to their separation had not been

included, which establishes fraud on the part

of Defendants No.1 to 3 since those properties

also had to have been included in the partition

deed, if Defendants No.1 to 3 were fair.

W.P. NO.8487 OF 2017

11.14. Therefore, the allegation and/or the grievance

on the part of the Plaintiffs is that only the

self-acquired properties of the 5th Plaintiff is

made a part of the partition deed and not the

self-acquired properties of Defendants Nos.1

to 3.

11.15. There is no dispute as regards the separation

of the 5th Plaintiff from the family or the

separation of Defendant Nos.1 to 3 from the

family.

11.16. Admittedly, in the application which has been

filed the properties which are now sought to

be included are bought subsequent to the

separation of the Plaintiff in the year 1965. If

that be so, those properties cannot be said to

be joint family properties and are apparently

only now sought to be included in the Plaint

because they were not included in the

partition deed of the year 2002, which seems W.P. NO.8487 OF 2017

to be the grievance of the Plaintiffs as regards

the partition deed.

11.17. In the affidavit filed in support of the

amendment application, it is only stated that

the Plaintiffs have not included all the joint

family properties since they could not locate

or trace to secure the documents pertaining to

the same. Now that they have secured the

same, the properties have to be included.

Apart therefrom they are no other material

averments made in the said affidavit.

11.18. Conspicuously, in the Plaint there were no

averments made as regards a reunion of the

family members. Be that as it may, even if it

could be contended that by filing a partition

suit there is a deemed averment made as

regards reunion, the very allegation made by

the Plaintiff is that the properties which had

been bought by him are self acquired W.P. NO.8487 OF 2017

properties and that the properties bought by

the Defendants 1 to 3 were not included in the

partition deed of the year 2002 would indicate

and establish that there is no reunion between

the parties.

11.19. Thus there being no joint family in existence

post 1965 and after 1973, any properties

purchased by the other Defendants more so

subsequent to 1965 since the 5th Plaintiff

separated in the year 1965 cannot be said to

be joint family properties and cannot be

included in a suit for partition by way of an

amendment.

11.20. Hence, I answer point No.1 by holding

that once a Plaintiff were to contend that

he has separated from the family, the

properties bought subsequent to the said

separation cannot be included in the said W.P. NO.8487 OF 2017

Plaint for partition filed subsequently

that too by way of an amendment.

12. Answer to point No.2: Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the Plaint as regards reunion between the family members?

12.1. For a person to claim that the property is a

joint family property there has to be specific

averment made as to how the properties have

been purchased, how the source of funds were

procured and how the properties constitute

joint family properties.

12.2. A mere perfunctory statement made would

not qualify or classify a property to be a joint

family property.

12.3. The Hon'ble Delhi High Court in the case of

Surender Kumar vs. Dhani Ram reported in

227 (2016) DLT 217, more particularly,

Paragraph 9 thereof has held as under:

W.P. NO.8487 OF 2017

9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties

12.4. The Plaintiffs in the Plaint nor in the affidavit

in support of the application under Order VI W.P. NO.8487 OF 2017

Rule 17 have made any averment to say as to

how the properties are joint family properties

except to state that the Plaintiff will in future

prove that the property is joint family

property.

12.5. It was required of Plaintiff to aver in sufficient

detail as to how the properties which are now

sought to be introduced by way of the

amendment are joint family properties and

fulfill the criteria laid down above. The same

not having been done, it cannot be said that

properties are joint family properties and on

the basis of mere bland averment made by

the Plaintiff, an application for amendment

cannot be allowed on the sole ground that

they can be determined after trial. There are

various consequences to any property

included in or made part of a suit, this Court

as also the trial court would have to act W.P. NO.8487 OF 2017

judiciously and exercise discretion in a proper

and required manner. An amendment which

exfacie is contrary to the admissions made in

the Plaint cannot be allowed. This Court

cannot be a mute spectator to any abuse of

the process of Court resorted to by any party

to the litigation.

12.6. Hence, I answer point No.2 by holding that an

amendment to include properties bought

subsequent to the partition can not be

allowed without there being a suitable

averment made in the Plaint as regards

reunion between the family members.

13. Answer to Point Nos.3 and 4:

Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds ?

And

Whether merely because Plaintiff contentions that the properties are joint family properties W.P. NO.8487 OF 2017

are they required to be included in the Plaint by way of an amendment?

13.1. Point Nos.3 and 4 are connected to each other

and hence, they are answered together.

13.2. In the amendment application, the Plaintiff

has just stated that the property sought to be

included by way of amendment are joint

family property. Apart therefrom, the Plaintiff

has not stated as to how the property became

the joint family property, the mode of

acquisition, the treatment of the property as

joint family property etc. A bald contention

that the property is a joint family property is

not sufficient for considering the same as joint

family property.

13.3. The person who alleges that the property is a

joint family property has to clearly and

categorically state as to how the property was

acquired, who has been dealing with the

property, who is in possession of the property W.P. NO.8487 OF 2017

and how the property has been in joint

possession of all the joint family members. It

is only after the initial burden is discharged,

that the burden of proof shifts on the other

person, to prove that it is not a joint family

property in rebuttal. The initial burden of

proof cannot be ignored. In the present

application, there being no manner of stating

as to how the property is joint family property

or otherwise, the falls foul of the decision of

the Delhi High Court in Surender Kumar's

case, which would squarely apply to the

present facts and circumstances of the case.

13.4. In view of the above, I answer Point Nos.3

and 4 by holding that no property can be

included in a plaint by way of an

amendment without specific averment

and allegation being made, that it or they

are joint family properties.

W.P. NO.8487 OF 2017

14. Answer to Point No.5: What Order?

14.1. In view of the finding above, the order passed

by the trial Court dated 9.02.2017 in

O.S.No.8358/2005 is set aside.

14.2. IA No.5 filed under Order VI Rule 17 is

dismissed.

No order as to costs.

Sd/-

JUDGE

SR/Prs*